The felony murder law is psychological violence that severs family bonds, politicizes public and private spaces, and generationally restricts Black and Brown people's ability to procreate, due to long-term sentencing or death from poor health while incarcerated.
If you were to ask people to explain the felony murder law, they would not be able. Its definition, and criteria, depend on each state's legislative intent for how the felony murder law is defined and interpreted. It is subtle. It is misunderstood. And its evil passes for legal routine.
I am incarcerated in New York. In Senate Bill S6865, introduced by New York State Senator Julia Salazar in 2023, it states, "Felony murder doctrine allows a defendant to be charged and sentenced for murder in circumstances where they were committing or attempting to commit a felony but did not actually commit a homicidal act. Under current state law, an accomplice to a crime, for example someone driving a getaway car, may be charged with murder as if they had actually shot someone in the course of a crime such as robbery even in a circumstance where they were unarmed and physically removed from the site of the murder."
This means that prosecutors can charge and convict any person of murder without proving they intended to cause another person's death. Therefore, Senate Bill S6865 seeks to amend "elements of the felony murder rule to require that defendant directly causes death or be an accomplice with the intent to cause death; permits vacating conviction or resentencing of defendants convicted of felony murder; amends maximum sentence; permits the defense of duress for victims of domestic violence."
Each state shows that Black and Brown people are affected disproportionately by this law. In New York, 14 percent of the population is Black, yet Black folks make up 46 and 49 percent of the jail and prison populations, respectively. As a result, these people are subsequently shut out of ever obtaining political power, wealth, enlightenment, and other cherished values or capabilities, the most fundamental of which is respect and its constituent element of reciprocal tolerance under law. Senate Bill S6865 notes evidence indicating that "as many as one in five individuals serving prison sentences for murder have been convicted based on the felony murder doctrine. Studies have also found that prosecutors use the threat of felony murder charges to obtain plea deals for lengthy sentences, demonstrating felony murder doctrine's role in extreme sentencing and mass incarceration."
Consequently, the human rights of those incarcerated are violated, which implies claims against both persons and institutions impeding the realization of these values or capabilities and standards for judging the legitimacy of social mores and laws.
Lest we forget, human rights qualify a state's power and sometimes expand the latter even while circumscribing the former, in instances, the right to life or the right to equal freedom of opportunities.
Instead, the felony murder law creates in the survivors—and in their families—learned helplessness, adaptive behaviors (mostly regarding navigating the carceral system), and internalized/horizontal oppression, which has a multigenerational effect.
We must look for historical events of comparison, such as the Nazi atrocities, to remind us of those human rights that truly came of age internationally, when German high officials were tried not only for "crimes against peace" and "war crimes," but also for "crimes against humanity"—even while the crimes were in accordance with the laws of the country.
For those who lived through those atrocities, much like those of us who are incarcerated citizens, they must remain vigilant of laws that have led to genocide.
Michel Foucault asserts that with the advent of biopolitical control, or the political ability, through laws, to create a certain kind of populace, the state uses racism as a mechanism to differentiate between those worthy of living and those who are dispensable to the "healthy" activity of the state a biological warfare of sorts.
Moreover, this action by the state is tantamount to biological warfare—not used against an enemy but against a perceived threat to the population. We have deplored these tactics in other once-legal practices: US chattel slavery, Jim Crow, and the felony murder law, which has helped fuel mass incarceration.
Violating human rights in ways that impede individual and group demands for political power, wealth, enlightenment, and other cherished values or capabilities can be described as a varied form of genocide, but no less a tool used by way of law.
It is not hyperbolic to highlight this law as a form of genocide. According to the Conventions on the Prevention and Punishment of the Crime of Genocide, the United Nations Treaty Series 277, genocide is:
"Killing members of the group; causing serious bodily harm or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; forcibly transferring children of the group to another group."
The term "genocide," which combines Greek and Latin roots to mean "murder of a race," was coined by Polish-Jewish lawyer Raphael Lemkin to describe the intentional destruction or attempted destruction of a national ethnic, racial, or religious group, whether in wartime or peacetime.
Although the legal definition of genocide doesn't extend to political groups, the term is often used colloquially to refer to large-scale political violence perpetrated on individuals and groups of marginalized people.
The felony murder law is a legal genocide that does not assure justice or a safer society, since the actual killer(s) often avoid accountability because district attorneys offer the more culpable—and at times, the actual killers—sweetheart plea deals.
In Dr. Joy DeGruy's book, Post Traumatic Slave Syndrome: America's Legacy of Enduring Injury and Healing, she asserts that past events that affected Jewish people, the Japanese, and Australian Aborigines still affect those demographics today. It's only in response to African people's tragedies, from the plantation to prison, that there is a visceral response.
Dr. DeGruy defines "post traumatic slave syndrome" as "a condition that exists when a population has experienced multigenerational trauma resulting from centuries of slavery and continues to experience oppression and institutionalized racism today. Added to this condition is a belief (real or imagined) that the benefits of the society in which they live are not accessible to them" (pg. 109).
The felony murder law has residual impacts of past trauma. Instead of seeing "strange fruit" hanging from magnolia trees, Black (and Brown) people are being re-traumatized and disappeared by this law today.
What those who haven't been sentenced under this law don't know is that the felony murder law eats away at the core and the structure of justice, as it removes mostly Black and Brown people from their communities, leaving those spaces grossly deficient of generations of family member's presence.
The felony murder law impedes peoples' demands for political power, wealth, enlightenment, and other cherished values or capabilities—all of which are fundamental to societal respect for Black and Brown people's culture and their children's sense of safety.
I, and others who are still alive to talk about our experience regarding the felony murder law, know all too well that this law must be dismantled because it erodes human rights in a way that results in legal genocide.
A law does not have to be inherently racist for its results to be racial, and racial laws have long been held to socioeconomically and politically disenfranchise US natives and enslaved Black folks and their lineage, resulting in large-scale, legal genocide-violence, removal from land, and racial convictions, whereas the "prisoners" were leased out as convict labor.
Black and Brown people are just another casualty of overzealous prosecutors who have access to this harmful tool, one that is steeped within disparate charges and convictions for Black people and people of color since their enslavement.
According to legal scholar Guyora Binder, the felony-murder doctrine is best understood as "a distinctly American innovation." And in her article "Sentenced to Life for an Accident Miles Away," Sarah Stillman writes: "Although it was first applied early in the nineteenth century, use of the charge surged in the [1970s], when the era of mass incarceration began." There is an extreme—and intentional—lack of transparency in data relating to felony murder charges and convictions, but thousands of people who did not commit murder are sentenced to death under the law.
According to The Sentencing Project, for adult felony murder convictions, nine states and the federal system mandate life without parole (LWOP) sentences, 15 states mandate LWOP in some cases, and 16 states and Washington, DC make LWOP an option. Five states allow or require a "virtual life sentence of 50 years or longer" for some or all felony murder convictions.
In a sense, the law itself sentences a person to death, but not through conventional methods such as the electric chair or death by injection. It is a genocidal mental death, a hope death, and a social death when you are not the killer.
In Society Must Be Defended, Foucault defines biopolitics as a state's power over life on a population level. It aims to surveil Black and Brown bodies and control the population through systems of management, like prisons, which essentially measure mortality and birth rate, quality of health, life expectancy, etc. of whole populations.
I did not urge, plan, or provide nor solicit any assistance from those who murdered someone and carried out a robbery of the victim's property afterward. Yet, I'm serving a sentence of 25 years to life because of this law.
21 years ago, this law forever altered the course of my life. But that is a nice way of saying it. So let me be more explicit: I did not have an opportunity to have children, engage in political power, gain wealth, and other cherished values or capabilities, like the liberty to live free from "cruel and unusual punishment," the most fundamental of respect under the law.
I am aggrieved by the New York state felony murder law, but my friend Wesley is the victim.
The felony murder law held me responsible for his murder, even while the actual murderers pleaded to murdering him. I received my 25 years to life sentence, while the actual murderers' sentences ranged from 2.5 to 12 years. They have all been back in society for more than 10 years, as of 2024.
Perhaps the felony murder law is an opportunity for New York state to "kill the color" in Black and Brown communities, similar to the effects of other US genocides within these same communities.
Justice cannot reasonably assert that any state's felony law is a fair law, a law society demands, or a law that is not overly used by prosecutors choosing expediency over Black and Brown people's lives.
We forget that the goal of the criminal justice system is yes, to serve justice, but also eventually bring incarcerated individuals back to society.
If you forget that those incarcerated are real human beings whose life has value, regardless of their crime(s), then it becomes easier to make and accept laws that have damaging long-term, generational consequences. Thus, incarcerated individuals are deprived of success once released, creating a perpetual punishment transmitted into trauma in Black and Brown communities.