Criminal law scholars have long been concerned with the system’s pervasive harms to race and class-subjugated communities, and more recently they observe the subordinating functions of criminal law and procedure. In their fascinating new study, G. Ben Cohen, Justin B. Levinson, and Koichi Hioki present data on the connection between race and group-imposed liability. Their paper critiquing the racially disparate application of felony murder and accomplice liability supplements this conversation with empirical findings that racial bias affects perceptions of who is acting alone versus in concert with others. I believe that these psychological findings are also relevant to discretionary policing. Just as implicit racial bias affects courts and juries’ application of felony murder and accomplice liability, it affects the assumption of group liability in police decisions to surveil, approach, interrogate and arrest young people associating in groups in public spaces.
Cohen, Levinson and Hioki address the operation of racial bias in homicide doctrine. First, they detail the pervasive critiques of felony murder and accomplice liability, which “sit at the fulcrum of the criminal legal system’s false promise of individualized moral culpability.” These doctrines eliminate a prosecutor’s need to prove either of the core elements of murder: that the individual committed the act (actus reus) or that they intended to do so (mens rea). Courts engage in a problematic inquiry where intent and action are inferred, providing fertile grounds for racial bias. The Court grappled with felony murder but ultimately found that even the death penalty does not violate the Eighth or Fourteenth Amendments where a person, without intent to kill, had a “major participation in the felony committed, combined with reckless indifference to human life.” And despite the fact that accomplice liability undermines fundamental notions of individualized guilt, it has become a powerful tool, especially for statutes defining offenses based on group affiliations including gang enforcement, and RICO charges. As the authors explain, prosecuting people for felony murder and accomplice liability addresses a problem that does not exist because accomplices are already punished for their actual crimes.
In a prior study, these authors connected findings from an Implicit Association Test (IAT) to illustrate that people associate Black and Latinx people with future danger, and white people with future safety, arguing that criminal law’s “future dangerousness” test is infused with racial bias. Here, they explore why implicit bias may lead to an automatic individualization of white men and deindividualization of Black and Latino men. Social scientists use the term “entitativity” to describe the circumstances under which people are perceived as being members of a group as opposed to individuals. Research shows that certain ethnic groups are perceived as having a higher level of entitativity than others, which led these authors to study psychological factors of assigning accomplice liability. Here, the authors used an IAT with over 500 jury-eligible participants to measure racialized differences in how jurors perceive defendants to be acting alone or members of a group. Participants were significantly more likely to quickly group together Black and Latino names with words associated with groups, such as “group, pack, crew, them, crowd, folks, bunch” and white facts with individuality, such as “individual, self, one, solo, single, somebody, character.’” They conclude that all actors in the system may possess a psychological baseline whereby they automatically perceive Black and Latinx defendants as group members, not individuals, thus inviting disparate application of accomplice liability and felony murder guilt by social association.
These troubling findings lend support to the chorus criticizing the racialized application of felony murder, accomplice liability and expansive conspiracy doctrine. They suggest that prosecutors and juries are imputing mens rea unfairly for Black and Latinx defendants, compounding already draconian doctrines. And the authors conclude that any credible legal system cannot impose the most severe punishments (including death) based on presumptions and imputed elements, especially where race plays a significant role in the operation of those presumptions.
Cohen, Levinson and Hioki do not explore whether racial bias influences the finding of group liability outside of the homicide context. Their data, however, illustrates that regular people ascribe higher levels of entitativity to Black and Latinx people than their white counterparts, and are more willing to assume collaborative intentions among those groups. This finding is incredibly relevant to the discretionary policing of young people. I believe that police reliance on an individual’s suspicious companions, both in contemporaneous pedestrian policing scenarios and in the context of a person’s association with individuals allegedly in a gang, erodes the Fourth Amendment’s requirement of particularity of suspicion. The prevalence of companion-based suspicion and the erosion of particularity required for police intervention in these various contexts is particularly troubling. It exacerbates the racialized impact of policing and disproportionately affects poor and young people because of the tendency to associate in public places.
Cohen, Levinson and Hioki’s excellent paper harnesses data to advocate elimination of felony murder and expansive accomplice liability. The authors’ new empirical support about implicit racial bias also suggests a fundamental problem for the world of discretionary policing.
