Data Transparency & The Disparate Impact of the Felony Murder Rule

[Ed. note: This guest blog post is part of the Center’s Mini-Symposium on papers presented at the 2020 Firearms Law Works-in-Progress Workshop.]

   The American criminal justice system has historically and contemporaneously been plagued by racially disparate outcomes, but not all these disparities are equally decipherable through traditional outcome statistics. Researchers have done extensive empirical work to document and prove many of these inequalities, particularly those related to the rise of mass incarceration. In this work I take one particular application of law to task: the felony murder rule. In doing so, I trace not only the only the origins of the rule, but also its modern-day application and societal reception to explore the insights and limitations of new data on felony murder rule charges.

Previous Research

    Previous research related to the felony murder rule quantitatively emphasizes racial inequality, to the severe detriment of African Americans. A majority of this work is grounded in the most severe punishment: the death penalty (Givelber 1994, Rosen 1989, Wolfgang et al. 1962). There are only a few studies that really break the felony murder rule down by race in terms of differential death penalty outcomes. First, Rosen (1989) found that defendants involved in a first-degree felony murder actually had worse odds with the death penalty than defendants with first degree premeditated murder charges. Second, Rosen (1989) and Bowers (1989) found that black defendants are much more likely to be charged in felony murder cases if the victim is white. Wolfgang et al. (1962) also poignantly notes that the actual rate of execution is the highest for black felony murderers. This is consistent with racially charged punishment in the history of the United States. In a report commissioned by the Model Penal Code Project, they found that out of 3,096 people executed for murder 1,516 were African American (Sellin 1959).

    Research also finds that the creation of new statutory law and implementation of prosecutorial discretion further worsens racial disparity. Givelber (1994) illustrates how the creation of law has served to further disadvantage defendants in the felony murder category. He explains that in 1994 in the United States “As a matter of law, an efficient killing [could not], in many states, be particularly "heinous" or "atrocious" because the victim did not suffer consciously before expiring” (1994). This means that an extremely proficient premeditated domestic murderer might be exempt from the death penalty while a felony murder rule participant would not be. Importantly, research postulates that police and prosecutors might be choosing to charge felony murder more often when there is a white victim (Johnson 1988, Radelet and Pierce 1985).

The Felony Murder Rule in Illinois

    Before now, many of the statistics I was able to find on unequal applications of the felony murder rule were very old or from very specific jurisdictions that have demographic and social contexts very different than my own sites of analysis. I update these studies with an investigation of Cook County, IL, a county that recently launched an Open Data Portal which contains case-level information about every felony case processed by the States Attorney since 2010. The specific verbiage of Illinois code 720 ILCS 5.0/9-1-A-3: defines a felony-murder rule homicide as one where: “He [or she] is attempting or committing a forcible felony other than second degree murder,” but you need to know which theory of the felony murder rule the state uses to unpack the practical meaning of its application.

Illinois currently uses the proximate cause theory of the felony murder rule. This theory holds defendants responsible for any foreseeable deaths that occur during the commission (or attempted commission of a felony), even if the killing is committed by a third party. The proximate cause theory is importantly distinct from the other most common version of the felony murder rule – the agency rule.

    Under the agency rule, the actions committed by a perpetrator can be attributed to a co-perpetrator (Dressler 2001). A commonly cited case is People v. Washington[1], where the would-be victim killed one of two armed robbers. The Supreme Court of California applied the agency theory and found that in order to apply the felony murder rule, the killing must be committed by the defendant or an accomplice of the defendant, so the felony murder rule did not apply.  This put restrictions on the actions of third parties and victims in applying the rule.

    However, under the proximate cause theory, used in Illinois, culpability under the felony murder rule “…[I]ncludes deaths of innocent bystanders caused by third parties, and even, as in two recently decided Illinois Supreme Court cases, the deaths of co-felons at the hands of police officers” Lijtmaer (2008). In practice this means that the actions of accomplices can be even more distinct from those of the actual killer and still fall under the jurisdiction of the felony murder rule. In essence, the defendant does not have to be the person who commits the felony AND kills the victim, allowing for the victim to be killed by a third-party entirely[2]. This leaves Illinois and its most populated county not only with more cases, but with a different type of felony murder case population where the murderous assault may not have been committed by any of the defendants in the case.

The Data

    Using the Cook County Open Data Portal, I looked at felony murder rule outcomes at multiple stages. The data portal contains information from initiation, intake, disposition and sentencing for hundreds of thousands of cases. I was able to use data from 3 of those stages, consistent with the longer lifecycle of a charge.

    Confirming the findings of previous literature, blacks are far more likely to be arrested for felony murder than whites. In the Cook County data, 74.8% of initiated cases have black defendants (N=768), and only 7.8% have white defendants (N=80). This demonstrates that enforcement of the felony murder rule is staunchly more affective of blacks both in proportion and in raw count.

    We also see a considerable amount of felony murder rule cases being thrown out at the disposition stage. About the same percentage of felony murder cases (~59%) for both blacks and whites are dropped. By sentencing, about 11.5% of white defendants are found guilty of a felony murder charge while 12.5% of black defendants are found guilty of felony murder charges. That means that 81.3% of people sentenced under the felony murder rule in Illinois are black. Punishment under the felony murder rule is especially important because of its severity and variability. In Illinois, the punishment for felony-murder under the felony murder rule ranges from 20-60 years and can even be extended to a life term in prison. With effectively a lifetime of freedom on the table, this a substantial number of harsh punishments for predominantly black men in Cook County.

    I want to emphasize a surprising statistic from this exploratory work: around 88% of these charges simply don’t stick through the court process. There are several reasons why a charge might not stick all the way through including insufficient evidence, 4^th amendment violations, procedural issues, lack of resources, and willingness to cooperate. These competing interests can also be subject to various forms of discrimination. For example, certain vulnerable groups may be on the receiving end of more 4^th amendment violations. Alternatively, a large amount of dropped charges could be indicative of a legal strategy on behalf of the prosecution, to give room and incentive to plead down. These simple outcome statistics, while seemingly transparently available and complete, do not allow us the analytic leverage to interrogate these possibilities.

What Next?

    That leaves us with some insights, but some significant gaps in knowledge. We now know that that applications of the felony murder rule disproportionately affect black people in Cook County, IL and that these charges are extremely fragile – most of them don’t last through the court process to become final sentenced charges. What these data from the Open Data Portal don’t tell us is why. That’s what I’m going to find out next.

References

Bowers, William J., Glenn L. Pierce, and John F. McDevitt. Legal homicide: Death as punishment in America, 1864-1982. Boston: Northeastern University Press. (1984).

Dressler, Joshua, Frank R. Strong, and Michael E. Moritz. "Understanding criminal law." (2001).

Givelber, Daniel. "The New Law of Murder." Ind. LJ 69 (1993): 375

Johnson, Sheri Lynn. "Unconscious racism and the criminal law." Cornell L. Rev. 73 (1987): 1016.

Lijtmaer, M. “The felony murder rule in Illinois: The injustice of the proximate cause theory explored via           research in cognitive psychology.” The Journal of Criminal Law and Criminology 98 (2008):      621–651.

Radelet, Michael L., and Glenn L. Pierce. "Race and prosecutorial discretion in homicide           cases." Law &   Soc'y Rev. 19 (1985): 587.

Rosen, Richard A. "Felony Murder and the Eighth Amendment Jurisprudence of Death." BCL Rev. 31 (1989): 1103.

Sellin, Johan Thorsten. The death penalty: a report for the model penal code project of the     American Law Institute. Executive Office, American Law Institute, (1959).

Wolfgang, Marvin E., Arlene Kelly, and Hans C. Nolde. "Comparison of the executed and the            commuted among admissions to death row." J. Crim. L. Criminology & Police Sci. 53 (1962):     301.

Footnotes

[1] People v. Washington, 62 Cal. 2d 777, 402 P.2d 130 (1965).

[2] See People v. Jenkins, 545 N.E.2d 986, 995 (111. App. Ct. 1989).