Racially Disparate and Disproportionate Punishment of Felony Murder: Evidence from New York

Abstract

America’s peculiar institution of felony murder liability has long been criticized as cruel and pointless, particularly as applied to defendants who did not kill. Yet data collection practices in the criminal legal system make felony murder difficult to study empirically. This article presents recently uncovered evidence of the racially disparate application of felony murder law, as well as increased disparities for those who have been convicted as accomplices. This study of felony murder arrest and disposition in New York is one of the first to reach beyond dispositions to examine the behavior punished, and to thereby compare patterns in arrest, prosecution, and conviction of accused principals with accomplices not alleged to have killed. This study is also one of the first to report the surprising scale of liability under felony murder law for individuals who did not kill—half of all people convicted of felony murder in the years measured—as well as for people who appear to have caused death inadvertently. It finds substantial racial disparities in arrests and convictions for felony murder compared to other forms of second-degree murder. These disparities are starker for teens, who make up at least a quarter of the dataset. Finally, it uncovers a shocking phenomenon: hundreds of arrests—mostly concentrated in New York City—of almost exclusively Black and Hispanic people for the fictitious crime of attempted felony murder. In New York, it seems, the worst of felony murder is reserved for defendants of color.