Study: UB law scholars identify racial disparities in New York’s felony murder law

BUFFALO, N.Y. – Studying a criminal justice system already criticized for being biased against Black people and other marginalized populations, University at Buffalo legal scholar Alexandra Harrington is now shedding light on the extent of racial disparities in the implementation of New York State’s felony murder law

Harrington and fellow UB faculty member Guyora Binder, a national expert on felony murder law, gathered data on arrests and dispositions for felony murder in New York State from 2008-2009. The pair ultimately compiled a dataset of about 1,000 arrests for felony murder and about 250 convictions for felony murder.

Harrington and Binder, who present their findings in an article soon-to-be published in the Iowa Law Review, concluded that Black people not only are disproportionately arrested for felony murder, they are also disproportionately convicted of felony murder.

Moreover, Black people were much more likely compared to white people to be convicted of felony murder on the theory that they participated in the underlying felony but were not the actual killer.

“This theory of murder liability is disproportionately being used against Black and Latinx people in New York State,” says Harrington, an associate professor in the UB School of Law. “The starkest disparities were for Black people convicted of felony murder without having killed anyone.”

The issue comes down to the two ways in which someone can be convicted of felony murder, a form of murder in the second degree that carries a life sentence. The first way someone might be convicted would be to kill someone during the course of another felony like robbery, kidnapping or rape, for example.

The second way a defendant can be convicted of this same crime is for participating in a felony during the course of which someone else kills the victim.

Thus, accomplices who were in a getaway car, or who did not know about the actual murder, or who did not intend to kill anyone could also be charged with murder. And, no matter the theory on which someone is convicted of felony murder, the sentence is the same: an indeterminate life sentence.  

“We know there are biases throughout the criminal legal system,” Harrington says. “Studies document racial disparities in arrest and charging, in the plea deals that defendants are offered, and in the length of the sentences people in prison are serving.

“The question we wanted to answer was whether the disparities are starker in the context of felony murder. In other words, are we seeing the same kind of racial disparities we do with murder in the second degree generally, or is there something more going on here?”

In the forthcoming article, “Racially Disparate and Disproportionate Punishment of Felony Murder: Evidence from New York,” Harrington and Binder, a SUNY Distinguished Professor in the UB School of Law, conclude with an emphatic yes.

“If we look at the beginning of the process, we see Black people disproportionately arrested for felony murder,” Harrington says. “Then if we look at who is convicted of felony murder, regardless of the theory of liability, Black people are disproportionately represented in that cohort. But they are even more overrepresented in the cohort of people convicted of felony murder based on accomplice liability; Black people were 34 times as likely as white people to be convicted of felony murder as participants that didn’t do the actual killing.”

In addition, Harrington explains, these disparities in conviction rates were greater for felony murder than for any of the predicate felonies like kidnapping, robbery, burglary, arson, sexual assault, and escape that can result in a felony murder conviction.

The racial disparities were also 60% greater for felony murder overall, and 180% greater for felony murder as an accomplice than disparities in convictions for other forms of second-degree murder like intentional murder or depraved indifference murder. According to Harrington, this belies any suggestion that Black people are disproportionately convicted of felony murder simply because they are more likely to kill.

“These findings support the need for reform that would bring the penalty for felony murder in line with what we would consider proportionate punishment,” Harrington says.

She is familiar with the opposing view. “Other people will argue that if you participate in this really reckless and dangerous felony, you ought to be held responsible for what should be the foreseeable outcome of your actions.

“But our response would be that’s not how human beings work, especially young people who do not always foresee these consequences. And when they are not intending to cause the same harm, they should not be punished as harshly as people who are committing murder with the intent to kill someone.”

Harrington says that her and Binder’s research suggests there are real reasons to believe New York’s felony murder law results in harsher punishments for Black and Latinx people.

“Police are arresting Black and Latinx people for felony murder in numbers disproportionate to their makeup in the general population, and prosecutors are charging them with this crime, often when the defendants have not actually killed anyone,” she says.

“Whether they are ultimately convicted of felony murder or not, Black and Latinx people who are arrested for felony murder are more likely ultimately to be convicted of a felony offense than white people. The second-degree murder charge can be a powerful bargaining chip for prosecutors looking to secure a conviction. The impact of our state’s felony murder law is wide-reaching.”

Harrington directs the law school’s Criminal Justice Advocacy Clinic, as well as the Advocacy Institute’s Innocence and Justice Project.